Rants and musings about things political, philosophical, and religious.

Locus Standi (or the Lack Thereof)

Locus Standi—an acknowledged right or claim—is the Latin legal term for what is commonly referred to as “standing”. In essence, standing determines whether a person has sufficient cause and reason to bring forward a case to sue somebody.

The basic requirements and circumstances for standing were once defined in Ex Parte Blue Cross & Blue Shield of Alabama as follows:

To present a justiciable case or controversy, the individual plaintiff must have standing to sue; to have standing, the individual must allege an injury directly arising from or connected with the wrong alleged. The standing requirement applies whether the plaintiff sues individually or on behalf of a class.

Standing only legitimately exists when the would-be plaintiff can clearly show how he/she is individually affected by the matter at hand. This, of course, is to prevent anybody suing for anything they want, regardless of who is affected by what. But though the standing rule is fairly easy to understand and evaluate, it would seem that this, like so many other elements of proper jurisprudence, is being twisted unrecognizably to suit the whim of the judges. Let’s look at two specific cases.

Barack Obama’s citizenship

Though most of the mainstream media has gone out of its way to ignore the issue (surprised, aren’t we all?), there have been several lawsuits (dismissed by Obama’s spokeswoman as “garbage”) brought forth in recent months to compel Obama to resolve the issue of his allegedly-forged birth certificate.

Plaintiff’s stake is no greater and his status no more differentiated than that of millions of other voters…. This harm is too vague and its effects too attenuated to confer standing on any and all voters

Since Berg was not impacted with the alleged un-Constitutionality of Obama’s presidential candidacy any more so than the millions of other Americans, the judge dismissed his case entirely. Further opining on Berg’s standing issue, the judge writes about “the fundamental problem that the harm [Berg] alleges does not constitute an injury in fact”.

One is naturally led to question who does have sufficient legal standing to uphold the Constitution and ensure that presidential candidates meet the criteria listed therein. If not “we the people”, then whom?

San Diego Boy Scouts of America

The Ninth Circuit appellate court in California—believed by some to be so far out there that it has become a fourth branch of government— took the exact opposite stand of the previously-mentioned court and gave legal standing to individuals not injuriously affected in any way by the issue in their complaint.

Today, our court promulgates an astonishing new rule of law for the nine Western States. Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact. No other circuit has embraced this remarkable innovation, which contradicts nearly three decades of the Supreme Court’s standing jurisprudence. In practical effect, the three-judge panel majority’s unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court.
…
Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the religion clauses of the United States and California Constitutions. The families did not have any of the traditional bases of standing: they did not compete for the leases, try to participate in any Boy Scout activities on the leased land, or even use or try to use the land for their own purposes (although they did use the portions of the parks that the Boy Scouts did not use). Rather, the families based standing on the claim that although they wanted to use the public land and could use it without interference from the Boy Scouts, they nevertheless declined to use it, because they would be offended by the Boy Scouts’ views on sexuality and religion if they did.

The future implications of this type of ruling were likewise explained in the dissent in a footnote:

This case is far more than a harmless certification order. It constitutes a precedential decision on the issue of standing. Even worse, if the Barnes-Wallaces and the Breens lose on the merits before the California Supreme Court, the panel majority’s standing decision will be entirely insulated from further review. Thus, unless the City of San Diego files a petition for certiorari in the United States Supreme Court now, which, of course, it may do, see 28 U.S.C. Â§ 1254, the majority’s standing decision may be unreviewable.

Whatever locus standi once was, it has been warped into something altogether unrecognizable from its previous self. Future judicial admissions of standing will no doubt be riddled with psychological babble, political correctness, and legalistic temper tantrums. In today’s America, nobody and everybody has standing. Clear as mud?

30 Responses to “Locus Standi (or the Lack Thereof)”

Let me float an idea here: Is it possible that the judge threw out the Obama case using locus standi as pretext, but really doing it because he didn’t want to be infected by the Delusional Wingnut Cause of the Week? Can’t say I blame him if he did — people who cling to this issue have cuckoo clocks for brains. I’d want someone like that out of my courtroom just so I didn’t become stupider by mere proximity.

Well said, Carb. The issue has been resolved to a satisfactory extent for any but the most frothingly far-right bloggers (e.g. Pam Atlas, et al.). Which, as I remember, were the most ardent Bush cheerleaders over the last 8 years, and the most likely to get it wrong, no matter what ‘it’ was.

I think I can safely say I’ve insulted no intelligent people by saying this, though I may have insulted some of the other kind. Ah, well.

I’m another, at least, for whom the possibly “delusional” birth certificate issues have been sufficiently resolved — I thought they were as silly and complicated as those who tried to argue McCain’s birth on a foreign U.S. military base invalidated his citizenship and candidacy.

That said, however, I would opine that mis-using ‘locus standi’ as a twisted “pretext” for dismissing a case has rather serious ‘unintended’ consequences and undermines our rights and system of government in a particularly flagrant manner. I would expect a judge to either find a legitimate way to dismiss the case or let the case forward and allow the one who brought suit look as foolish as necessary with the expected results.

It seems the real focus of this post was to stimulate discussion of two blatantly contradictory, yet potentially influential U.S court rulings involving a time-honored notion of Locus Standi.

Do you agree with either ruling on Locus Standi? What do you feel are the likely implications for future contexts in which you may be less pleased with the ultimate results?

“… and they saw that their laws had become corrupted, and that they had become a wicked people….” (Helaman 4:22)

I’m with Carborendum and Doug. I am satisfied that the birth certificate issue has been resolved. However, the dichotomy of the competing court rulings still exists. This is unjust and needs to be remedied.

I am surprised that you guys feel it is resolved! Hawaii said they have the original, but they are not going to release it. That birth certificate could say anything.

What worries me about this case is the precedent that has been set by the secretaries of state saying that it isn’t their job to determine if a presidential candidate is eligible to run. If they aren’t, who is? I think we have found a big problem here that people will exploit in the future.

Loquacious, if you’d care to do a web search you can see a scan of the document. Your assertion that it “could say anything” implies that you haven’t followed this very closely and aren’t aware that it’s available online.

I understand that the right to sue without being able to prove that a crime was committed is often useful (say, to punish an organization that pushes a food product through FDA regulations without proper testing that proves dangerous). However, both of these cases are a little fishy.

It’s important to recognize that every Froot Loop is going to get riled up at the prospect of a black, Democratic president who doesn’t want to demean every country that disagrees with us to protect America’s balls, and some of these will sue. With a dozen or so cases pending it’s obvious that Berg’s is not the only case.

But rejecting the Berg case because it’s merely a conspiracy theory from a nutbag with only suspicions and no real evidence (his idea of “research” is a Google image search and speculation) is better than trying to negate his right to sue altogether.

I actually have spent too much time looking into this issue. I have looked at the certification of live birth– which is not an actual birth certificate, it is generally usable as a proof of identity, but it is a shortened form of the actual birth certificate nonetheless.

My concern is the fact that Hawaii has different rules about who can get a certification of live birth than other states. Also, the fact that the actual birth certificate was sealed raises suspicions. If there is nothing to worry about, then why not just release the actual birth certificate and be done with it?

And to tell you the truth, I’d like to know why every candidate isn’t required by law to show his actual birth certificate to SOMEONE before he can run. Think about it, we have to show two forms of id to get a job and a birth certificate to get a driver’s license. Why not someone who is trying to be elected to the highest office in our country?

Good point about having to follow some sort of standardized method to prove one’s birth in the U.S. I personally don’t think Obama has this obligation in particular but some sort of standardized system wouldn’t necessarily be wrong. (In response to the mention of McCain above, in McCain’s case he was still eligible because his parents were both citizens and the area in Panama he was born in was considered U.S. soil. At least that’s what I understand).

Can I get a source for the differing rules in Hawaii? It would be strange for the certificate to say explicitly that his birthplace was Honolulu whatever their rules were. Additionally, the Honolulu Advertiser published Obama’s name and birthdate as a local birth amid a list of other names. In our existing system the absence of a birth certificate (especially with other fairly incontrovertible evidence) doesn’t prove wrongdoing any more than real evidence of fraud (and the conspiracy theorists have none). I’m sure they don’t see any need to release Obama’s birth certificate when it won’t quiet any of the nutbags anyway.

(By the way, I was referring to Berg’s patently false assertions that the document is a forgery when viciously demeaning you – he included that opinion in his actual suit – not a lawsuit demanding the release of a birth certificate.)

Clumpy: Up until 1972 the state of Hawaii had a program called the Certificate of Hawaiian Birth program. It allowed someone who’s birth wasn’t officially recorded to apply after the fact so long as they were able to provide witnesses to vouch for the circumstances. Here is another link that gives an explanation of the program.

Could he have been registered under this program? I don’t know. The certification of birth that he released is only a shortened form of the real thing on file, so there is no way to know for sure that I am aware of.

If he was registered under this program, it is possible that his Mom could have gotten people to say that he was born in Hawaii when he was actually born in Kenya.

I guess the reason I’m more interested in the Locus Standi comments here than the side-show citizenship arguments is because the letter of the law has always been that if at least one of your parents was a formal U.S. citizen then the naturalization laws clearly recognized your own citizenship — thus your mother didn’t have to worry about being out of the country for military service (McCain) or church service (my little brother who was born in Brazil but is a U.S. citizen the same as me) or whatever.

As for the potential “spirit of the law”, the clause introduced by the Framers suggesting a ‘natural born citizenship’ requirement for the generations after their own is often tied to a comment by John Jay where he indicated such a rule “to provide a strong check to the admission of Foreigners into the administration of our national Government”.

Under neither the letter nor the spirit of the law does Obama fail the test.

And that is my objection to all the fuss over the birth certificate. Obama attended Hawaiian Elementary, Junior High, and High Schools. He grew up American in America.

He is not a foreigner even if he was born in Kenya and somebody else conspired to cover it up [fyi therein would be the technicality that some are trying to exploit — *if* that is the case, and then *if* you can get a judge to say that first he was Kenyan and then seconds later — but not instantaneously — American law naturalized him because of his American mother (the same ridiculous argument the anti-McCainiacs were trying to argue) and then further *if* you don’t care that you are flagrantly ignoring the ‘spirit of the law’ (Framer intent) then perhaps you might be able to raise a pointless ruckus for a while.]

It is also sometimes irrationally argued that somehow it is anti-American that Obama happened to live out of the country [Jakarta] from ages 6-10 . . . as did any number of kids I know with parents in the military or working for their Church or all sorts of things. It just seems the utmost prejudice to try to paint Obama as anything other than a natural-born ‘American’ when both the letter and spirit of the law exonerate him on that count — furthermore, this entire circus is wholly irrelevant to otherwise useful arguments about his policies, philosophies, and political actions. Like those or not (and I often don’t), the man is as ‘American’ as anybody else I know.

I’m afraid you are in error. Baraq’s mother was a foreigner only recently naturalized. For citizenship to transfer to a naturalized citizen’s child, one or both parents needs to have been a citizen AND a continuous resident of the US or its territories or protectorates for at least 6 months or a year (I forget which one).

Whatever it was, Baraq’s mother did not qualify under these conditions. Although allowances are made for vacations etc. She had a long-term absence from the US, thus disqualifying any child born outside the country.

Momma,

I was not aware of such a program. But even if these accusations are the case, how can such a thing be proven? If it can’t be proven, we’re left with the presumption of innocence.

Don’t get me wrong. I’m not a Baraq fan. And something in my gut says he’s not a real citizen. But we have to go with what we can prove.

Well, the “spirit of the law’ argument still stands. Obviously Obama is as American as any of us – the circumstances of his life don’t change one bit if he spent a few months somewhere else. Still, I understand the role of the rule of law in something like this.

I thought I was a citizen for about 10 years. I lived here and had grown up here for many years of my life. In my teens I caught the attention of the INS. I wasn’t trying to avoid them since I believed myself to be a citizen. They informed me that I was not a citizen and they were threatening to deport me.

I had forgotten my native language. I would be deported on my own as a minor to a foreign country with no one who knew me; and I could not speak their language.

I was given some clemency. I had to sign up for a green card immediately. Then I had to go through the hoops of becoming a citizen. It was annoying, a little scary, and a lot of hassle. It cost time, money, and worry – knowing if a new case manager came in and decided to deport me, he could with a swipe of his pen.

I refuse to allow people to get off for free when I was threatened with deportation for something that was not my responsibility (I was still a minor). Your position of “he’s as much a citizen as any of us” spits in my face.

Whatever reasons for allowing him to claim citizenship, I refuse to accept the “general recognition above actual law” argument.

I do believe in clemency as I was given for a very odd circumstance. But what you are talking about is a blanket amnesty which I’ve never supported.

Hey – I don’t want to spit in your face. I don’t think you should have been attacked either for a technicality. But I’d think you’d be a little more sympathetic to the plight of people who have experienced similar bureaucratic nightmares.

(Note: I’m not really referring to Obama here but immigrants in general, and assuming that you are too since you’re using a bad experience to trump up moral authority for this topic. I dare say his citizenship situation, even if his citizenship is eventually contested for real, is a fair bit better and more privileged than Carborendum’s. Even if it’s found that Obama can’t legitimately claim the Presidency, given all the momentum built up and the (in the minds of most) unthinkable alternative a way or loophole would be found.)

Well, I guess most are in agreement on the Locus Standi issues Connor brought up . . . but I’ve also gotten more swept up in this whole naturalization, immigration, and citizenship story than I intended.

So, does anybody have some reliable sources of information on all this? The facts and the laws? Everything I’ve read — and I’ve seen quite a few sources but they’re just newspapers (possibly poorly researched), wikipedia (possibly entirely fabricated), etc. — indicate that Barack’s mom was an American with parents from Kansas born in Kansas and then raised in “California, Kansas, Texas and Washington” (from http://is.gd/g1Wa for example) before ending up in Hawaii where she also attended college, met Obama’s father, and reportedly gave birth to Obama . . . I hadn’t heard she had done anything that would jeopardize her citizenship . . .

I guess in a nation so shaped by immigration where we continue to have so much controversy about immigration and naturalization policies, these kind of questions are fairly topical — but not something I know much about at all.

What I want to point out is that as bad as that experience was for me, I believe it was that difficulty that partially contributed to how much I treasure my citizenship. Everything takes on more value if you have to work for it.

What has Obama done?
He worked as a community organizer only working with the black population.
As an adult he consciously made the choice to join a black separatist church.
He has encouraged illegal immigration.
He wants to abandon the free market system that has made the economy of this country strong.
He wishes to do away with the Constitution because it is the greatest roadblock to equalizing the races.

Does this sound like he treasures the Constitution, freedom, equality, Capitalism, or anything in this country besides Blacks?

Do you still think he is as American as any of us?

If I were working his case and found a technicality that would get him deported, I wouldn’t hesitate.

Back to the topic at hand: I’d like to see some real moral and/or legal rationale for allowing different judgements to be claimed for similar issues. These seem like the only thing justifying them is a liberal agenda.

Firstly, we don’t have a free market system, or at least we’re moving away from it. We have something approaching a monopoly capitalism society, where the richest 255 people of the world have comparable assets to the poorest 2 billion and probably similar influence. We exported our poverty to other countries and reaped the rewards with lower prices and fewer manual labor jobs in the United States. A tiny minority of the world’s citizens control nearly all of the world’s resources and production and set up the rules to keep their group small.

I’d love to see a real free market system, but the ability of enormous corporations to produce products to a minimum quality cheaply and with maximum profit-grabbing makes small businesses with personality an impossibility.

And to suddenly talk about socialism after nearly a century of impersonal governmental meddling is disingenuous at best, suspicious at worst.

Immigration: Obama supports a path to citizenship for people who have contributed to our country and kept out of jail. Illegal immigration is a mere misdemeanor – sounds fair to me.

Religion and culture: If we’re discounting people who have joined a religious congregation primarily consisting of a single race, then most people are already out of the picture. You join a church out of unity and you’d expect to see many people from similar cultures and backgrounds. Frankly I find your race-baiting uncomfortable – if you’d listened to Obama’s speeches you’d see he’s not a racist. Yes, he spent quite a bit of time building inner-city communities consisting primarily of blacks, but anybody who thinks he spent his time associating only with blacks or views them as exclusively worth his time of day is misguided.

“He wishes to do away with the Constitution because it is the greatest roadblock to equalizing the races.”

I don’t see this logic. Bush did away with the Constitution because it made his self-righteous brand of homeland security inconvenient and preached a brand of egalitarian thought that made blind American exceptionalism difficult. We haven’t had a president in our history that followed the Constitution literally – why are you afraid now?

I have odd feelings about an Obama presidency. I don’t necessarily agree with many of his ideas about the role of government, but I don’t think he’ll damage the country more than it’s already been damaged in the last twenty years, and particularly in the last eight years by a dangerous president who thought with his gut and felt self-assured in doing whatever he wanted, even when it hurt people. Still, he’s one of the most intelligent, knowledgeable politicians I’ve seen in quite some time. I’ll be following him as closely as ever, but his breaches of justice will be things that I merely disagree with rather than things that make me sick to my stomach (torture and surveillance implemented with a wink and a Texas witticism).

I’ve always been concerned. I agree with your statements regarding the Constitution and the Free Market. I’ve stated it on this very blog again and again – President after President.

True, no country has ever had a purely free market system. But it is the goal we try to achieve. No country has ever had a purely communist system either. Where on the line do we stand? I’d like to see us much further towards the free market side than we are today. Where are we heading with Obama? It makes me even more wary than I already am.

Why are you afraid now?

I ask you to look at the context of my writing. I wasn’t comparing Obama to past presidents or the current president. I was commenting on Obama individually. I don’t like Bush either.

I specifically was using his behavior and philosophies to show his personal lack of commitment to the America that (in my eyes) most Americans believe in. Yes, I’ve heard his press conferences and I’ve seen his voting record. What I pay attention to is when he speaks something that agrees with his voting record. When he says something that is in conflict with his voting record I dismiss what he said as political double speak.

For example, he says,”I’m not going to take your guns away.” Look at his voting record and we find that any time any gun issue came up, he voted for further restrictions, taxation, regulation, or outright banning. Gee, does this sound like a promise we can believe in coming from a politician?

I don’t see this logic. It wasn’t logic. It was a quote.

He says,”The fundamental restrictions of the Constitution prevent the federal government from rectifying the economic inequalities among blacks in this country.” (This is paraphrased. I don’t remember the verbatim quote, but you can look it up on youtube). Then his voting record on anything race related (such as affirmative action and DBEs) he votes for what he himself considers unconstitutional racial favoritism. Then he puts on this “President for ALL Americans” speech. What do you think his real philosophy is?

I find your race-baiting uncomfortable.

I wasn’t race baiting. I wasn’t talking about blacks in general. I was talking about a single man who believes in separation of races. And I was condemning the philosophy of separation. As a minority, I completely believe we can live peaceably in an integrated society. He believes in separation. I say this not because of some speeches he gave, but because of his actions.

If I said Hitler was sick in the head because he believed in the superiority of the Arians, would you say that I was race-baiting against whites? NO. Why? Because I wasn’t talking about whites in general. I was talking about ONE white man with a messed up philosophy. We don’t need to be wary of whites. We need to be wary of those who believe in white supremacy.

In the same vein, we don’t need to be wary of blacks (I have a few black friends myself). We need to be wary of those who subscribe to this separatist philosophy.

And don’t misinterpret me and say that I was putting Obama on the same tier as Hitler. I wasn’t. I was using Hitler as a discussion point. Nothing more.

Immigration: This is really becoming a moot point. I’m going to drop it.

I got some clarification on the qulifications of Obama’s mother vis-a-vis citizenship. Obama’s mother was born in Kansas — thus an American Citizen since birth.

It was not a question of time frame since naturalization (obviously) but the law at the time was:

A child born to a US citizen parent and a non-US citizen parent is considered a natural born citizen born abroad if the citizen parent is 19 years of age. Ann Dunham was 18 years of age. Thus Obama would have needed both parents to be citizens if he was born abroad. If however his Hawaii birth is considered valid, then all that becomes a moot point.

Carborendum, I’ve considered some of your points, and I’ll wisely agree to drop some topics that could steer the conversation into long digressions :).

Personally, I think either candidate would have been better than Bush, and if McCain hadn’t chose a self-righteous, moron as his VP I might even leaned toward him (after all, he sympathized with me on a few of the civil rights issues I value). Still, I’m a little more lighthearted now than I was before. Closing Gitmo and bringing the military to a workable level alone would be enough for me. Welfare doesn’t even bug me as much, but I know Obama’s going to promote some incentive programs that will irk me. Still, his wishy-washy cabinet promotions prove he’s not going to do as much for progressives as they might be wishing.

About the Author

Connor Boyack is president of Libertas Institute, a public policy think tank in Utah. He is the author of several books along with hundreds of columns and articles championing individual liberty. Connor's work has been publicly praised by national figures such as Ron Paul, Judge Andrew Napolitano, Tom Woods, and many others.

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